Supreme Court Will Hear DOMA and Prop 8 Challenges: An Analysis

Dec 7, 2012 Full story: www.towleroad.com 769

The Supreme Court issued orders granting hearings in the Prop 8 case, Hollingsworth v. Perry , and one Defense of Marriage Act case , Windsor v. United States .

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“SCOTUS will Rule in June for”

Since: Aug 08

MARRIAGE EQUALITY:-)

#692 Jan 22, 2013
Fitz wrote:
<quoted text>
From the Washington Supreme Court decision upholding marriage..
“But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single- sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.”
Note the court appropriately applies Loving, etc.
The plurality makes strong criticisms of the concurrence and two of the dissents at the outset of its opinion, including charging the main dissent with “sadly overstep[ping] the bounds of judicial review” for suggesting that supporters of marriage laws are bigots. Besides calling the lower court decisions “transparently result-oriented” and a reflection of “the dominant political ideas of their legal community,” the concurrence says:“[t]hough advanced with fervor and supported by special interests loudly advocating the latest political correctness, the arguments (and the dissenters) cannot overcome the plain legal and constitutional principles supporting Washington’s definition of marriage.”
Neither Loving or Zablocki was about procreation.....just about the fact that MARRIAGE is a FUNDAMENTAL RIGHT.......and Skinner wasn't about marriage, but the FUNDAMENTAL RIGHT to procreation......the fact that the courts have mentioned both in these cases DOES NOT mean they have to go hand in hand in order to be considered FUNDAMENTAL RIGHTS!!!
Fitz

Roseville, MI

#693 Jan 22, 2013
NorCal Native wrote:
<quoted text>
Neither Loving or Zablocki was about procreation.....just about the fact that MARRIAGE is a FUNDAMENTAL RIGHT.......and Skinner wasn't about marriage, but the FUNDAMENTAL RIGHT to procreation......the fact that the courts have mentioned both in these cases DOES NOT mean they have to go hand in hand in order to be considered FUNDAMENTAL RIGHTS!!!
From both the Skinner and Loving opinions,

"Marriage is a basic right of man, fundemental to our very existance and survival"

Obvious nothing about same-sex marriage could be considered "fundmental to our countries existance and survival"

And no, the right to procreate is inextriably caught up in the right to mary, as is the right of children to know and be known to their parents...and the right to parents to know and be known by their children.

Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children.”
Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.
The People Have Spoken

Toronto, Canada

#694 Jan 22, 2013
Why Prop 8 and any other anti-marriage equality laws are Unconstitutional!

www.afer.org/our-work/our-arguments

“SCOTUS will Rule in June for”

Since: Aug 08

MARRIAGE EQUALITY:-)

#695 Jan 22, 2013
Fitz wrote:
<quoted text>
From both the Skinner and Loving opinions,
"Marriage is a basic right of man, fundemental to our very existance and survival"
Obvious nothing about same-sex marriage could be considered "fundmental to our countries existance and survival"
And no, the right to procreate is inextriably caught up in the right to mary, as is the right of children to know and be known to their parents...and the right to parents to know and be known by their children.
Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children.”
Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.
I know how you anti-gay marriage folks opt to read that particular part of the ruling, but it that were true, than Griswold vs Connecticut would have been ruled differently because it gave women the right to decide if and when they get pregnant.

Especially in the Zablocki ruling where his right to marriage was being denied because of his failure to pay child support and the Court ruled that could not be done because a person's right to marry was as fundamental a right as one to have children and other major decisions in a person's life.

Now, you don't have to see my point of view, but THERE IS NO WAY THAT MARRIAGE CAN BE BASED SOLELY on the couples nature ability to procreate because NOT all couples have that ability, yet their right to marry is NOT infringed upon......making that argument essentially moot!!!!

Sorry, but several State Supreme Courts have disagreed with your argument and I believe that SCOTUS may too!!!!
Fitz

Roseville, MI

#696 Jan 22, 2013
NorCal Native wrote:
<quoted text>
I know how you anti-gay marriage folks opt to read that particular part of the ruling, but it that were true, than Griswold vs Connecticut would have been ruled differently because it gave women the right to decide if and when they get pregnant.
Especially in the Zablocki ruling where his right to marriage was being denied because of his failure to pay child support and the Court ruled that could not be done because a person's right to marry was as fundamental a right as one to have children and other major decisions in a person's life.
Now, you don't have to see my point of view, but THERE IS NO WAY THAT MARRIAGE CAN BE BASED SOLELY on the couples nature ability to procreate because NOT all couples have that ability, yet their right to marry is NOT infringed upon......making that argument essentially moot!!!!
Sorry, but several State Supreme Courts have disagreed with your argument and I believe that SCOTUS may too!!!!
Not at all...Indeed Griswold vs Connecticut created a right to contraception expressley by rooting a right to privacy in the marriage bed.. The right to regulate pregnancy was that of the couples privacy and that is were the right to marriage came into play. There is no "right to reproduce" outside the right to marriage articulated in Griswald.

As far as your point about "all couples dont have the ability to reproduce"

"Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone. For example, although the ability to make personal decisions regarding child rearing and education has been recognized as a fundamental right (see, e.g., Pierce v. Society of the Sisters (1925) 268 U.S. 510, 534- 535), this right is irrelevant to people who do not have children. Yet, everyone who has children enjoys this fundamental right to control their upbringing. A similar analogy applies in the case of marriage. Everyone has a fundamental right to “marriage,” but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings." 1

1- In re Marriage Cases, Cal. App. 2006, McGuiness, P. J.(writing for the majority.)

Since: Mar 09

Location hidden

#697 Jan 22, 2013
Fitz wrote:
<quoted text>
From both the Skinner and Loving opinions,
"Marriage is a basic right of man, fundemental to our very existance and survival"
Obvious nothing about same-sex marriage could be considered "fundmental to our countries existance and survival"
And no, the right to procreate is inextriably caught up in the right to mary, as is the right of children to know and be known to their parents...and the right to parents to know and be known by their children.
Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children.”
Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.
It is premature to assert that the "our survival" was referring to our Nation.

SSM definitely effects the survival and development of the children of gay people, and that of the children gay couples adopt.



http://www.youtube.com/watch...

Just a couple of kids raised by gay couples.
straight shooter

Montpelier, VT

#698 Jan 23, 2013
Fitz wrote:
<quoted text>
Not at all...Indeed Griswold vs Connecticut created a right to contraception expressley by rooting a right to privacy in the marriage bed.. The right to regulate pregnancy was that of the couples privacy and that is were the right to marriage came into play. There is no "right to reproduce" outside the right to marriage articulated in Griswald.
As far as your point about "all couples dont have the ability to reproduce"
"Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone. For example, although the ability to make personal decisions regarding child rearing and education has been recognized as a fundamental right (see, e.g., Pierce v. Society of the Sisters (1925) 268 U.S. 510, 534- 535), this right is irrelevant to people who do not have children. Yet, everyone who has children enjoys this fundamental right to control their upbringing. A similar analogy applies in the case of marriage. Everyone has a fundamental right to “marriage,” but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings." 1
1- In re Marriage Cases, Cal. App. 2006, McGuiness, P. J.(writing for the majority.)
these guys don't want to hear it...
even IF the scotus rules this way, they will maintain its bigotry and that they need to stack the court...
they use their ignorance of the basics of marriage as a sword...

I would add, however, that what they are tripping you up with right now is the fact that all (regardless of marital status) have a privacy right in their sexual relations and reproduction. What they miss is that this is the FOUNDATION for the right to marry, not incidental to it...

that our choice to have and raise our kids in this institution made for procreation is our right...
if gays want an institution that is based only on love, that is their right too, its just not "marriage"...

our privacy right is what gives us the right to the institution, marriage itself is not the right, its the institution protected by our right...

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#699 Jan 23, 2013
straight shooter wrote:
<quoted text>
these guys don't want to hear it...
even IF the scotus rules this way, they will maintain its bigotry and that they need to stack the court...
The anti-gays seem to have no problem "stacking the court" to rule against the right to marry for same-sex couples.

What's good for the goose......
straight shooter

Montpelier, VT

#700 Jan 23, 2013
WeTheSheeple wrote:
<quoted text>
The anti-gays seem to have no problem "stacking the court" to rule against the right to marry for same-sex couples.
What's good for the goose......
if you think your issue is one we would stack the court over, you have delusions of grandeur...

but are you proving my point by insinuating IN ADVANCE that the scotus is bigoted if they rule against you?

Since: Mar 07

Woodford, VA

#701 Jan 23, 2013
straight shooter wrote:
<quoted text>
these guys don't want to hear it...
even IF the scotus rules this way, they will maintain its bigotry and that they need to stack the court...
they use their ignorance of the basics of marriage as a sword...
....
Of course, it IS bigotry.

If a basic civil and human right is denied to a group of people, with NO societal or state interest in that denial, and the denial is based only on animus against that group, then what else can it be BUT bigotry?

Marriage is not a sword, it is a cherished institution that provides legal recognition and certain protects and benefits to married couples and any children they may have. Gay couples marrying will not change that institution in any negative way for anyone who is not gay, and MORE secure families, children, and elderly Americans only benefit society as a whole.

Since: Mar 07

Woodford, VA

#702 Jan 23, 2013
straight shooter wrote:
<quoted text>
if you think your issue is one we would stack the court over, you have delusions of grandeur...
but are you proving my point by insinuating IN ADVANCE that the scotus is bigoted if they rule against you?
There are a great many social conservative who would be perfectly willing to stack the court over such issues.

And, yes, bigotry can and has invaded the Courts from time to time. It's takes only a click of the mouse to research the evolution of the Court's stance on many issues, from slavery, segregation, and woman's rights.

We shall see if that is the case, now. And if it is, we will do whatever is necessary to bring case upon case upon case to the court, for as many years and decades as necessary, until we succeed in obtaining legal marriage for ourselves, and those gay folks to come.
straight shooter

Montpelier, VT

#703 Jan 23, 2013
Quest wrote:
<quoted text>

Marriage is not a sword,
no, you use the fact that you have never read any of the scotus marriage cases as a way to deny what they say.

that's using your ignorance as a weapon...
straight shooter

Montpelier, VT

#704 Jan 23, 2013
Quest wrote:
<quoted text>
There are a great many social conservative who would be perfectly willing to stack the court over such issues.
And, yes, bigotry can and has invaded the Courts from time to time. It's takes only a click of the mouse to research the evolution of the Court's stance on many issues, from slavery, segregation, and woman's rights.
We shall see if that is the case, now. And if it is, we will do whatever is necessary to bring case upon case upon case to the court, for as many years and decades as necessary, until we succeed in obtaining legal marriage for ourselves, and those gay folks to come.
the fact is, all the court has to do is rely on standing law to negate everything you "believe"...
you will call it bigotry, i will call it knowing our history...
Jane Dodo

Hoboken, NJ

#705 Jan 23, 2013
straight shooter wrote:
<quoted text>
the fact is, all the court has to do is rely on standing law to negate everything you "believe"...
you will call it bigotry, i will call it knowing our history...
Really? Then why didn't the lower courts rule on "standing law?"
straight shooter

Montpelier, VT

#706 Jan 23, 2013
Jane Dodo wrote:
<quoted text>Really? Then why didn't the lower courts rule on "standing law?"
they did.

but not the one the scotus took to review....
how about that!
Jane Dodo

Hoboken, NJ

#707 Jan 23, 2013
straight shooter wrote:
<quoted text>
they did.
but not the one the scotus took to review....
how about that!
So the lower Courts that ruled on Prop 8 used standing law, eh? Well then, I guess gay Californians can start making wedding plans for June.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#708 Jan 23, 2013
straight shooter wrote:
<quoted text>
if you think your issue is one we would stack the court over, you have delusions of grandeur...
but are you proving my point by insinuating IN ADVANCE that the scotus is bigoted if they rule against you?
Really? You think the "convervatives" aren't well aware that the future of the definition of marriage in this country won't come down to the SCOTUS and that they DON'T consider that issue when viewing potential SCOTUS nominees?

Remember who asked Justice Kagan about a constitutional right to "same-sex marriage"?

Is there ANY doubt in your mind her nomination would have been filibustered by the "conservatives" in the Senate had she stated unequivically that she believed their IS a constitutional right to "same-sex marriage"?

Really??

Do you think the "conservatives" aren't trying to stack the court with anti-abortion justices?

I'd say that pretty much answers your question.

I think I've been pretty clear that I think EVERY SCOTUS justice has their own biases and that those biases affect their interpretation of the constitution. Otherwise previous precedents would never be overturned without an intervening change in the constitution affecting that particular issue. It's all about the individual 9 justices on the court; it always HAS been and always WILL be.

“Headed toward the cliff”

Since: Nov 07

Tawas City, Michigan

#709 Jan 23, 2013
straight shooter wrote:
<quoted text>
the fact is, all the court has to do is rely on standing law to negate everything you "believe"...
you will call it bigotry, i will call it knowing our history...
The court could have relied on "standing law" to negate any challenges to sodomy bans or inter-racial marriages or segregation or any other number of issues.

That's the funny thing about the SCOTUS, they tend to make up their own minds about what they want to do, often in spite of standing law.

Since: Jun 11

AOL

#710 Jan 23, 2013
Fitz wrote:
<quoted text>
From the Washington Supreme Court decision upholding marriage..
“But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single- sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.”
Note the court appropriately applies Loving, etc.
The plurality makes strong criticisms of the concurrence and two of the dissents at the outset of its opinion, including charging the main dissent with “sadly overstep[ping] the bounds of judicial review” for suggesting that supporters of marriage laws are bigots. Besides calling the lower court decisions “transparently result-oriented” and a reflection of “the dominant political ideas of their legal community,” the concurrence says:“[t]hough advanced with fervor and supported by special interests loudly advocating the latest political correctness, the arguments (and the dissenters) cannot overcome the plain legal and constitutional principles supporting Washington’s definition of marriage.”
Turner made it clear; the fundamental right of marriage remains intact even when procreation ability is clearly not possible.

As Gill v OPM demonstrated, tradition alone fails to provide a legitimate excuse for more discrimination, and even if opposite sex parents benefit from marriage, depriving same sex families equal protections does nothing to encourage straight parent families. It only harms same sex parent families while providing nothing for opposite sex families.

You fail to provide any legitimate governmental interest sufficient for denial of equal protection as required by the 5th and 14th amendments.

Since: Jun 11

AOL

#711 Jan 23, 2013
Fitz wrote:
<quoted text>
From both the Skinner and Loving opinions,
"Marriage is a basic right of man, fundemental to our very existance and survival"
Obvious nothing about same-sex marriage could be considered "fundmental to our countries existance and survival"
And no, the right to procreate is inextriably caught up in the right to mary, as is the right of children to know and be known to their parents...and the right to parents to know and be known by their children.
Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that always and everywhere are incapable of producing children.”
Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.
Again, the procreation argument fails to provide any legitimate governmental interest sufficient for denial of equal treatment under the law. Gay people can and do raise children. Denial of equal treatment "does nothing to promote stability in heterosexual parenting. Rather, it "prevents children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure, when afforded equal recognition under federal law." (Gill)

"Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country. Indeed, "the sterile and the elderly" have never been denied the right to marry by any of the fifty states. And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate." (Gill v OPM)

The decision of whether or not to have or raise children is a private matter, unrelated to the fundamental right of marriage:

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992):“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996):“Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”

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